TABLE 1 – SUMMARY OF TRANSITIONAL PERIODS AND KEY DATES
SECTION 8 ENFORCEMENT AND COMPLIANCE
9.8 PROHIBITIONS – REFERENCE TO RECOMMENDATIONS OF DOCTORS OR HEALTH PROFESSIONALS (SECTION 3.5 OF THIS
GUIDANCE)
Q44. What is meant by recommendations of individual doctors or health professionals?
Article 12(c) prohibits, in commercial communications, health claims which make reference to recommendations of individual doctors or health
professionals or associations other than national associations of medical, nutrition or dietetic professionals and health-related charities. The Regulation does not define ‘recommendation’ however Oxford Dictionaries online defines ‘recommendation’ as ‘a suggestion or proposal as to the best course of action, especially one put forward by an authoritative body’. In our view it is a useful definition in the context of Article 12(c) of the Regulation particularly if it is taken to refer to an authoritative individual as well as to an authoritative body.
Q45. What is a health professional?
In the context of the Regulation, we take the view that this would include anyone who is presenting themselves, or is understood by the consumer, as having expertise in the field of health or nutrition.
Q46. Will the Regulation control advice given by doctors and health professionals to patients?
The Regulation does not cover non-commercial communications such as
independent advice given by dieticians, doctors, in-store pharmacies and health centres to patients. For more advice on what is a commercial communication please see Section 2.4
Q47. Can a doctor or health professional recommend a product if a health claim isn’t made?
In our opinion it would be permitted, but care needs to be taken about context and presentation to ensure that consumers are not misled. Remember too, that the Regulation applies to commercial communications and does not apply to non-commercial communications. Professional codes of practice, such as the
Health Professions Council’s Standards of Conduct, Performance and Ethics, or the British Dietetic Association’s code should be adequate guides in
distinguishing conduct on the borders of the professional and the commercial. At present, there are few authorised health claims, therefore remember that the current legislation requires that any health claim should not mislead consumers and anyone making a health claim should be able to substantiate it.
Q48. Can claims make reference to recommendations of individual doctors or health professionals if they are speaking on behalf of a charity or medical association?
If it is clear that the recommendation or endorsement is that of the national association of medical, nutrition or dietetic professionals or health related charity, Article 11 would apply. Otherwise, Article 12 would apply.
Q49. Can a doctor or health professional provide general healthy eating advice if it is not linked to a branded product?
The Regulation only applies to commercial communications. It will therefore depend whether the general healthy eating advice is in a commercial
communication and can be construed as a claim making reference to a
recommendation of a doctor or health professional. Only in these cases would the prohibition in Article 12(c) apply. See Section 2.4 for more information about what is and what isn’t a commercial communication.
Q50. Will individual doctors or health professionals be able to write in a commercial communication about the relationship that exists between a food category, a food or one of its constituents and health?
As explained above, the Regulation prohibits a very specific type of health claim. When writing in commercial communications, whether these be product labels, in-store leaflets or advertising copy, care would need to taken to use health claims onlyfrom the authorised list of claims, once this is available, when describing the relationship that exists between a food category, a food or one of its constituents and health.
Q51. Can a doctor or health professional recommend a branded product that is also making a heath claim?
In our view this could be permitted. Any recommendation should not be presented in a way that can be construed as an unauthorised health claim, or as misleading to the consumer. If, in a commercial communication, a health professional recommends a product which also bears an authorised health claim, the two components should ideally be separated in presentation to the consumer in case the two read together makes an unauthorised health claim because, for example, a possible implication is created that the claim is
referring to the recommendation. Context is likely to be very important here and discussion with enforcement authorities prior to the claim being made is
recommended.
Remember, any health claim that is made must comply with the requirements of the Regulation outlined in Sections 3 and 5.
Q52. Does the Regulation prohibit doctors and health professionals using health claims to recommend branded products in presentations to peers or industry?
The Regulation controls claims made in commercial communications. As long as a communication from doctors or health professionals to their peers was not deemed to be a commercial communication and as long as those receiving the communication were not being addressed as the final consumers of the
products for which health claims were being made, then such claims would be outside the scope of the Regulation.
Q53. Can I refer to research conducted by a doctor or health professional on my product label?
In our view this would be permitted, as long as this isn’t in the form of a recommendation and any associated claims comply with the requirements of the Regulation. For example, you could say “research conducted by Doctor X / institute X shows that calcium is good for your bones” as a generic statement, but on a product containing calcium this would be an implied health claim. There would therefore have to be an authorised claim, such as “calcium is good for your bones”, the product must comply with the requirements for making such a claim, and the labelling comply with the other general requirements in
Sections 3 and 5.
Q54. I am a dietitian and write commercial communications about the health benefits of foods containing a particular ingredient for food companies marketing
products containing that ingredient; separately, I am paid by a daily newspaper to write about the health benefits of the same ingredient. Does the Regulation apply to any health or nutrition claims I use in the press articles?
Recital 4 of the Regulation indicates that “non-commercial communications and information in the press and in scientific publications” are outside the scope of
the Regulation. So, as a general rule, a newspaper article will not be covered by the Regulation. However, see paragraph 32 above for circumstances when a newspaper article might be considered a “commercial communication”.
Q55. As a health professional, how can I communicate emerging science including ‘new’, unauthorised health claims to consumers?
If you are communicating through a commercial communication and use any health claims then they must comply with the Regulation. Health claims used in a non-commercial communication would be outside the scope of the
Regulation.
Q56. If a health professional speaks about underpinning science at a food brand- related event would any health claims they use be covered by the Regulation?
If such communication were ‘commercial’ any health claims used would have to comply with the rules in the Regulation. The source of any payment received by such speakers would need to be taken into account in deciding whether claims were being made in a commercial context.
Q57. Can I use a celebrity endorsement?
Celebrity endorsements do not appear to fall within the scope of the prohibition in Article 12(c) (unless the celebrity is a doctor or health professional).
However, any nutrition or health claim made in a commercial context would need to comply with the requirements of the Regulation in the same way as any other nutrition or health claim. You could seek advice from the Advertising Standards Authority.